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08/06/1991 City CouncilTHESE MINUTES SUBJECT TO AUGUST 13, 1991 APPROVAL EDMONDS CITY COUNCIL MINUTES AUGUST 6, 1991 At 6:30 p.m., Mayor Naughten adjourned the meeting to Executive Session in the Small Plaza Meeting Room for approximately 30 minutes to discuss a legal matter. The regular meeting will reconvene at 7:00 p.m. The regular meeting of the Edmonds City Council was called to order at 7:00 p.m. by Mayor Larry Naughten at the Library Plaza Room, 650 Main St., Edmonds. All present joined in the flag salute. PRESENT Larry Naughten, Mayor Jack Wilson, Council President Jeff Palmer, Councilmember Steve Dwyer, Councilmember Roger Hertrich, Councilmember Jo -Anne Jaech, Councilmember William Kasper, Councilmember John Nordquist, Councilmember STAFF Robert Chave, Planning Div. Mgr. Bob Alberts, City Engineer Art Housler, Admin. Serv. Dir. Peter Hahn, Comm. Svc. Dir. Buzz Buzalsky, Fire Chief Jeff Wilson, Planning Spvsr. Brent Hunter, Personnel Manager Arvilla Ohlde, Park & Rec. Mgr. Noel Miller, Pub. Works Supt. Greg Ramsland, Equip. Rent'Spvsr. Scott Snyder, City Attorney Alice Brown, Recorder Mayor Naughten welcomed Miss Edmonds of 1991, Tracy Kemp, who stated she was pleased to introduce from Hekinan City, Japan, Miss Shoko Ishikawa. Ms. Ishikawa greeted those present with "Hey, man, what's happening", and shared that she had arrived from Japan on August 4th, and wanted to express her thanks for being invited to "Edmonds City". The Mayor wished her good luck as Miss Hekinan. CONSENT AGENDA Councilmember Palmer moved to approve the Consent Agenda, including the July 2, 1991 minutes. He withdrew the motion so that Councilmember Hertrich could speak. Councilmember Hertrich wished to pull Items D & E from the Consent Agenda for discussion. COUNCILMEMBER PALMER MOVED, SECONDED BY COUNCILMEMBER JAECH, FOR PASSAGE OF THE BALANCE OF THE CONSENT AGENDA ITEMS, INCLUDING THE JULY 2, 1991 CHANGES TO THE MINUTES AS NOTED BY THE CITY CLERK. MOTION CARRIED. * Councilmember Hertrich addressed Item (0) AUTHORIZATION TO REPLACE SEWER TV CAMERA ($8,656 INCLUD- ING SALES TAX), stating he had problems with one -bid items, and wished to see it go out if possi- ble for additional bids. Greg Ramsland explained that the camera is bought from Cue's, and the only thing compatible with the equipment is a Cue's camera, which was purchased in 1981. It needs another $2,000, and it is best to replace that camera because of downtime. Cue's is a sole source. Councilmember Hertrich asked about the value of the total equipment that is under one manufactur- er that limits the replacement to the same manufacturer. Mr. Ramsland stated the equipment was bought for a total of $139,000 in 1981. This included the TV van, ceiling unit, and TV unit. The condition of the rest of the equipment is fairly marginal at this time, and perhaps the equipment in the van should be replaced, but that will be discussed at budget time. Regarding the camera which is being discussed for purchase, there is a contract where Cue's would buy it back for a certain dollar amount if we decide we are going to replace the equipment. Councilmember Hertrich questioned that if the equipment is going to be.replaced, how many compa- nies. are out there who would like an opportunity for a competitive bid situation. Mr. Ramsland replied that the camera equipment is limited to 4 or 5 different vendors nationwide, and that the City cannot do any TV-ing until the camera is replaced, since it is broken. The City would like to get going again on this: Councilmember Nordquist asked if it is purchased direct from the factory, and Mr. Ramsland re- plied that Cue's is in Florida. *See 8-20-91, p.12 Councilmember Hertrich recapped the situation and stated that the situation is that the equipment needs to be replaced, but it bothered him to spend money now. He wondered if it is better o spend $8,000 for a new camera for one year's use, or $2,000 to repair it for one year. Mr. Ramsland replied that even if you okayed new equipment, he could not foresee that it would arrive even within one year. He reiterated that they need to be able to TV the sewer lines, since people have been hired to do this and they want to do the work. COUNCILMEMBER HERTRICH, SECONDED BY COUNCILMEMBER JAECH, MOVED TO APPROVE ITEM (D) AUTHORIZATION TO REPLACE SEWER TV CAMERA ($8,656 INCLUDING SALES TAX. MOTION CARRIED. COUNCILMEMBER KASPER MOVED, SECONDED BY COUNCIL PRESIDENT WILSON, THAT THE BALANCE OF THE FUNDS BUDGETED BE RETURNED TO THE COUNCIL CONTINGENCY FUND. MOTION CARRIED.* Addressing ITEM (E) REPORT ON BIDS OPENED JULY 24, 1991 ON HO-PAC VIBRATOR COMPACTOR/DRIVER FOR WATER/SEWER SECOND, AND AWARD OF CONTRACT TO FRAY EQUIPMENT COMPANY, INC. ($5,491.15, INCLUDING SALES TAX), Councilmember Hertrich stated he would like to eliminate the one bid type of situa- tion. Noel Miller, Public Works Superintendent explained that two bids were submitted; however, the second bid submitted a blank bid, as they did not feel they could meet our response. This was an invalid reason, as they could meet our response. The amount of the bid was within the estimated amount of the equipment, so he recommended going ahead with it. He said they could go back and solicit other people, and it is not a critical item. Councilmember Hertrich asked if this was a common piece of equipment in the construction industry and this was the reason we did not go out for more bids, and the reply was affirmative. COUNCILMEMBER HERTRICH MOVED, SECONDED BY COUNCILMEMBER NORDQUIST, TO GO OUT FOR ANOTHER BID AND REJECT ALL PRESENT BIDS. Councilmember Nordquist asked if the bid was written up "or equal", or did they specify one spe- cific piece of equipment. Mr. Miller stated it was "or equal", and he did not have knowledge of how many people were solicited. He further noted that nothing came in "or equal". Councilmember Palmer asked Councilmember Hertrich if he was rejecting the current bid or just soliciting for additional bids, and Councilmember Hertrich said he wanted to go for additional bids, but did not know if that is legal. Mr. Snyder clarified that the proper method would be to reject all bids and request releases of bids. With the seconder's permission, COUNCILMEMBER HERTRICH AMENDED THE MOTION TO INCLUDE THE REJEC- TION OF ALL BIDS, AND THE REQUEST FOR RELEASES OF BIDS. MOTION AS AMENDED CARRIED. The approved items on the Consent Agenda include the following: (A) ROLL CALL (B) APPROVAL OF MINUTES OF JULY 2, 1991 AND JULY 23, 1991 (C) CANCELLATION OF MUNICIPAL WARRANTS (D) AUTHORIZATION TO REPLACE SEWER TV CAMERA ($8,565 INCLUDING SALES TAX) (F) AUTHORIZATION TO APPLY FOR DNR URBAN FORESTRY STUDY FOR YOST PARK ($2,500) AUDIENCE Mr. Dick Van Hollebeck, 580 Hemlock Way, Edmonds, spoke regarding Yost Pool. He had spoken a month and a half ago with the Engineering Department regarding the fact that they would be going out for bids the end of August. He had also discussed with the staff the possibility for a shift in this time. He stated that the Lynnwood Pool will be closed from mid -September to mid -Decem- ber, and this possibly could be for a longer period of time. He felt this would be a good oppor- tunity for the City to have Yost open at the time the Lynnwood facility is closed. He asked the Council for respectful consideration of this so that this project could be accelerated. Ms. Natalie Shippen, 1022 Euclid, Edmonds, spoke regarding the Safeway complex purchase. She stated she knew of no public discussions which have taken place, and asked if there was a formal vote for the purchase of that property in Executive Session, and when did that take place. Mr. Snyder replied that the formal vote was done approximately during the 3rd meeting in June, to which Ms. Shippen replied that she had all the minutes and saw no formal motion to proceed with that purchase. This will be researched by the staff. *See 9-3-91, p6 (para 7 ) EDMONDS CITY COUNCIL MINUTES Page 2 August 06, 1991 Ms. Shippen questioned what the annual cost to pay off the bonds and how many years that will take and was upset there was never any public opportunity to speak on a $3,000,000 bond issue. Mr. Snyder stated it will be on the August 20, 1991 agenda for the approval of the bonds and to take public comment in Executive Session. Ms. Shippen stated she did not see it on the August 20th proposed agenda, but it states only "Executive Session Property Matter, 30 Minutes". Mr. Snyder further clarified that three items for that agenda include (1) a resolution declaring public use establishing the process for public comment; (2) a report on removal of contingencies from the sale agreement; and (3) approval of revenue bonds to pay for the purchase of the facility. Ms. Shippen asked what impact will the public input have at this point since the offer has been made, and if the three conditions in the offer of purchase are met, is the assumption there that the City is obligated'to buy it regardless of what the public input is? She felt that it seems that the Council is having a public hearing after the fact and the public has never (to the best of her knowledge) seen anything in the paper. There have been no Councilmembers quoted on what their feelings are, but she has seen two staff members' quotes; she has looked through the min- utes and has seen no reference to any Councilmember, except Councilmember Jaech and Councilmember Palmer asked for evaluation of the books to see how much income would come from that property to pay off the revenue bonds. Ms. Shippen questioned if they would proceed with the sale without knowing what it would cost annually to pay off the bonds and how much revenue they would get annually. She stated a staff statement was made that 90%-95% of the cost of the purchase price would be returned by the rental income from the businesses down there. She did not see how anyone could make the statement with- out knowing what the annual bond cost would be and what the revenues from the property would be. Ms. Shippen reiterated that it seems the Council is having a public hearing after the fact. Council President Wilson felt compelled to say that he agreed that there should be public input on the matter. He felt that his position was weak and felt that it perhaps was not going to happen in the style with which we are accustomed. He stated he felt unsure. Ms. Shippen asked if the City knows what the cost of the management firm will be that is going to manage the property that pays off the revenue bonds. Mayor Naughten replied that while they do not have all the answers to these questions at this meeting, they will have them by the August 20th meeting, and they have until August 31st to make a decision. Ms. Shippen asked if they will .be making a decision on the purchase at the August 20th meeting, questioning at what time they would decide they are going to indeed buy the proper- ty and can afford to pay off the revenue bonds. Mr. Snyder wished to clarify some of the questions raised, stating that when purchasing a piece of commercial real estate with 19 operating entities, it is a condition of the Purchase and Sale Agreement that the precise numbers (proprietary information) remain confidential. The Council has ordered an appraisal for requested review of the leases, have received estimates from bond counsel on it, what the revenue overhead and cost projections were as well. This information was provided to the Council in general terms prior to the third meeting in June. Mr. Snyder further explained some of the present constraints. The precise authorization of the revenue bonds and the operation to remove contingencies is what will occur on August 20th, which would really be the formal approval. There will be a number of contingencies on the agreement. If the contingencies on the agreement are removed, the City would proceed as with any locking property that was on the market up to 60 days. This would require the Council to put down a $30,000 deposit previously approved at the June meeting. There are contingencies that would cause the Council to second guess, but the numbers referred to were authorized. Part of the Council's hesitancy to discuss certain aspects relates to the confidentiality provision of the Commercial Sales Agreement. * Ms. Shippen wondered if the confidentiality business was going to take place in Executive Ses- sion, to which Mr. Snyder responded that no portion of the approval of the purchase of public property can take place in Executive Session. What is being discussed is the exact terms of those commercial leases, and its items are standard in a commercial purchase of this type to have a confidentiality provision. They had negotiated the provision to provide that information essen- tial to the public approval, which would be the terms of the Purchase and Sale Agreement, which are public information. * Mr. Snyder emphasized that after the City has removed the contingencies, the numbers would be available. Basically, the City could get in a position where it would have to purchase the prop- erty whether it wanted to or not by breaching the provisions of the confidentiality provision. *See 8-10-91 EDMONDS CITY COUNCIL MINUTES Page 3 August 06, 1991 Ms. Shippen asked the Council why they were buying the property, and what is the public purpose for which this is going to be used. Councilmember Palmer stated they have identified a real laundry list of needs, but a determina- tion has not been made. Ms. Shi ped�stated she knew what the three purposes are: parking, parks and public buildings, and ask/for which are they going to use it. Is it going to be used for ferry parking, or just how do they intend to use it. Councilmember Hertrich stated that as far as alternate sites, a number of scenarios are involved, but ferry parking is not one of them. This is for public use, but the feeling perhaps on the Council is that where we have an opportunity to get a property on the waterfront that we had better do it now while it is available, as it will benefit the public. Some of the property is in commercial use at"this time and there are leases that are existing, but the end use would be public use. It will not be for ferry traffic, as that is not desirable. Ms. Shippen asked how much revenue will the Council have to anticipate from the operation of the businesses, and what is the breakpoint at which they decide the revenues will pay off the revenue bonds, to which Mayor Naughten responded that these questions will be answered at the August 20th meeting. Ms. Shippen felt that this had not been given, and wondered if the revenues fall short, where will the extra money come from. Councilmember Dwyer interjected that there has been talk of revenue bonds, but the Council may not want to go that way. Even if there was no money from the buildings, purchasing it would be worthwhile since it is a unique opportunity that would be criticized if we have the opportunity to get this chunk of land by the waterfront but don't pursue it. There is a variety of potential uses, and it is appropriate when the land is obtained to go through the process of which is the best use of the property. There is not a large window of whether or not there was a use or uses for which we desire to use it. Any money we get back from operating is a bonus. Ms. Shippen asked if they would use councilmatic bonds, and Mr. Dwyer replied that there are a number of ways available to do this. Even if it was a mortgage spread out over 30 years, it would be an acceptable thing. Mr. Dwyer stated he was probably in the minority on the mechanism for payments which will be discussed on August 20th. He felt it was a good piece of property for wonderful public uses. Ms. Shippen stated she wanted to know what the annual bond cost would be, projected revenue, as well as the management fee, and other pertinent information, at the August 20th meeting. Councilmember Hertrich added that it was hoped that the public would come in and discuss any other uses that they would like to see for that piece of property. Mr. Fred Goughe, 192nd Place S. W., Edmonds, stated he had read an article in the ENTERPRISE regarding a proposed site for a fire station on 192nd Place, behind Seaview Elementary. He want- ed the Council to know that people are concerned about a fire station. He felt the City was doing things behind closed doors, but that the area children's safety was a factor. He asked that this be brought up to the public and not behind closed doors where it concerns a public building in a residential area. Mayor Naughten informed him that public hearings will be held, and that the site about which Mr. Goughe had spoken was just one site they had looked at. Mr. Goughe stated they had heard that the property owner had been offered $4.00 per square foot for the property. Councilmember Nordquist explained that there is a new fire chief, and the interest on the part of the Council was to move the public works site from the bottom of the hill onto 212th, across from the roofing company. There has been concern to attempt to get the kennel site across the street for a fire station. When the new fire chief came he wanted to take some time to review other sites in relation to contracts with the County, Lynnwood, and other agencies. The public is being asked to help with the site selection. There is absolutely no acquisition without the public knowing about it, as it is a real impact on any area. Mr. Goughe said that the problems with traffic are there already, and more traffic would be detri- mental to the children's health. Councilmember Nordquist commented that the entourage which may have been seen recently in the area was the Council, who had visited a park site, and there was a caravan which stopped to look at this site. EDMONDS CITY COUNCIL MINUTES Page 4 August 06, 1991 Ms. Jean Johnson, 1022 - 3rd Avenue South asked why parks are not posted as far as "No Dogs" around the perimeter, and enforced. She said she had been stopped twice when she had her small dog with her, and she has seen many dogs in the park. She felt it is a good law, if it is en- forced. Mayor Naughten said they will try to get an answer to her. The audience portion of the meeting was closed. CONSIDERATION OF FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING APPEALS OF ARCHITECTURAL Mr. Snyder advised the Council not to consider the Findings of Fact until after they enter the minutes into the record, and taken up Mr. Sander's motion for reconsideration, so that the cart is not before the horse. He noted that they have (A), (B) and (C) before them. It was noted by Mr. Snyder that Mr. Sanders, in conjunction with the motion to reconsider, had submitted to the City Clerk on August 2nd a packet of photographs with an exhibit depicting the subject property within the city of Edmonds. After discussing the receipt of the packet with the City Clerk, Mr. Snyder asked that she prepare copies, but not distribute them. If these were distributed outside of the hearing, at the present time Council has closed the public hearing and reopened it for the limited purpose of accepting information relating to the legislative history of the height limitation. If you accept this ex parte outside of the hearing, you will then be obligated to reopen for the opponents of Mr. Sanders to rebut information received. Since Coun- cil's motion was to reopen the hearing for a limited purpose, Mr. Snyder stated he had asked the clerk to hold the information in the packet in order that the Council make the decision on wheth- er or not to extend the hearing and not have that. decision determined by the operation of the Appearance of Fairness Doctrine. Mr. Snyder further stated that Mr. Sanders wished to place an objection in the record at some point as to his (Mr. Snyder's) conduct, and this perhaps would be done at an appropriate time. Mr. Snyder informed the Council that if they decide to take the packet into evidence, it will need to be distributed to the opponents to give them an opportunity to rebut it. The Council is to make the decision whether they wish to take these into evidence. The hearing notice does not state that this will be considered at this meeting. Council President Wilson wanted to know if (8) and (C) were to be dealt with separately or togeth- er, to which Mr. Snyder replied that if the Council accepts the minutes provided, the Mayor will need to reopen the hearing, and ask Mr. Sanders on behalf of the respondent related to legisla- tive history issue, then close that portion of the hearing and proceed to take up Mr. Sander's mo- tion. The Council needs to keep these separate. Mr. Snyder suggested that the Mayor open the public hearing portion at this time (7:42 p.m.). Mayor Naughten opened the public hearing and asked Mr. Snyder to briefly inform on what is before the Council. Mr. Snyder stated that the Council has been provided various minutes from public meetings to be incorporated into the record. It is appropriate to call on the applicant and any others to address the legislative history, and to let Mr. Sanders state any objections he has. Mr. Richard Sanders, 4122 - 128th S. E., Suite 301, Bellevue, was present to represent the owner and developer of the project. He did have an objection to opening the proceeding for further evidence of a limited kind, since they were not given notice of any motion to that effect, and he felt this was unfair not to allow the owner to introduce additional evidence on other portions. Mr. Sanders stated that the purpose of submitting these minutes of inadequacies on the evidentiary basis for the proposed Findings prepared by the Edmonds City Attorney is not an ade- quate reason to open this. He noted from Mr. Snyder's comment that these minutes are part of your packet material, but has not been distributed to the board which directly supports their motion for reconsideration. These would have shown that their motion for reconsideration is meritorious. He wanted the Council to know he did object on behalf of the owner to this proce- dure. Councilmember Kasper asked if Mr. Sanders was referring to a letter received asking for reconsid- eration and the reasons for it, or if this was additional information beyond that. EDMONDS CITY COUNCIL MINUTES Page 5 August 06, 1991 Mr. Snyder replied this was a letter of July 31st, received on August 2nd, and recautioned the Council that if they reopen that all parties must have an opportunity to rebut the matter, and that Council's notice did not address that subject. Mr. Snyder asked Mr. Sanders if notice was given, to which Mr. Sanders replied that he got notice of the hearing, but no notice of the motion to partially reopen to take additional evidence. Mr. Sanders reiterated that the Council has been denied a copy of what the applicant has submit- ted, and he did not understand the rules of procedure that the Council operates under. Mr. Snyder answered that comments or evidence should relate only to the legislative history. Mr. Sanders stated he did not understand that the Council has formally. opened the hearing and that additional evidence would be considered. Mr. Snyder stated that Item (B), under 3, on the agenda is information on the height limit. He advised the Council that in their deliberations after the close of the public hearing referred individually to their recollections of the legislative history. He cautioned the Council at a later date that their discussion is not evidence and not a part of the record, and suggested that if they wanted to take that legislative history in, which as a quasi judicial body they can take judicial notice of their own minutes and history, that they do so and offer the parties an oppor- tunity to address that legislative history. That was the notice that was received and that is the item the Mayor has called for, so if you have comments regarding the legislative history on that subject, now is the time to make it. Mr. Sanders objected to the introduction of additional evidence before the body and they are precluded from offering additional evidence. He felt it was unclear whether they are considering it or not, so there is nothing in the minutes regarding the issues in this particular case. There are two issues relating to height --one is whether rooftop equipment is necessarily included within height limitations under the code, and there is no mention of rooftop equipment in the minutes. The other item was having to do with smaller rooflike enclosures that were less than covering the entire roof area (doghouse enclosures, as they are referred to). There is also nothing in the minutes having to do with that. Mr. Sanders stated he felt the minutes were not relevant. Councilmember Hertrich wanted an opinion from Mr. Snyder on the indication that Council is receiv- ing one type of information and not the other, and Mr. Snyder replied that the Council, as a quasi judicial hearing body as with any prior fact had the ability to request additional informa- tion. His advice was that since they have been advised that their recollections were not evi- dence, have the parties and staff address the legislative history of the height provision. There- fore, since the staff provided the minutes, the public or opponents of the project who have a desire may speak limited to that issue. Councilmember Hertrich wished to clarify that since this is strictly the legislative history, that the Council had just heard Mr. Sanders speak on the legislative history of the height limita- tion. The public meeting was opened regarding the legislative history. Mr. Peter Beck, 718 Spruce, Edmonds, reminded those present that previously the Mayor had stepped down in accordance with the Appearance of Fairness Doctrine, and asked why he had not.done so at this hearing. Mayor Naughten stepped aside from the public meeting in view of the Appearance of Fairness Doc- trine, because he had tried to negotiate a settlement with the parties aside from the public meeting. Council President Wilson asked.for comments from anyone present. Mr. Sidney Stephensen, 200 - 2nd Avenue North, began speaking regarding the chandeliers, and other matters, and was ruled out of order since this is to address the legislative history only. Council President Wilson apologized, but clarified that the Council is restricted to talking about the legislative aspects of the height limit. Councilmember Hertrich requested that Mr: Snyder indicate to the audience when the action took place on the height limitation. Mr. Snyder stated that as *early as 1979 and through 1980 the City recodified the Community Devel- opment Code, and the height limitation was revised in conjunction with that recodification, and was completed in October 1980. EDMONDS CITY COUNCIL MINUTES Paqe 6 August 06, 1991 Council President Wilson asked if anyone else wished to speak to the legislative history on the height. No further audience participation forthcoming, the public hearing portion of the meeting was closed. Regarding ITEM (C), Council President Wilson felt that we are going down a road which is going to be futile and expensive. COUNCIL PRESIDENT WILSON MOVED TO RECONSIDER THE PORTION THAT WAS TAKEN AND THAT BOTH APPEALS BE OVERTURNED. MOTION FAILED FOR LACK OF SECOND. Councilmember Dwyer asked Mr. Snyder if it is necessary with what has transpired with the failed motion if there needs to be an affirmative action taken. Mr. Snyder suggested that Council take an affirmative action since additional items have been added to the record, and that Council may have change based on the legislative action to the Findings of Facts and dispose of the issue of Mr. Sanders' additional exhibits. If you want to hear additional testimony of Mr. Sanders and note receipt of the packet from Mr. Sanders, it is not a part of the record of your decision. Councilmember Dwyer asked if it is procedurally appropriate to proffer a motion to deny the re- quest for reconsideration and to deny the request to supplement the record with his items in one motion. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER JAECH, TO DENY THE REQUEST FOR RECONSIDERA- TION AND NOT TO ADMIT THE ITEMS THAT WERE OFFERED TO SUPPLEMENT THE RECORD BY THE APPLICANT. Councilmember Dwyer stated that in dealing with the last portion first, we reopened the hearing simply to include in the record, primarily, in case some other body were to review Council's decision, the written documents which Council believes sets forth the basis for things discussed, such as minutes of meetings when the height limitation came through. There is no question that that is in the record. Councilmember Dwyer explained that he moved not to supplement the record because both sides have been treated equally and had the full and fair opportunity either at the Hearing Examiner stage or during the course of the de novo review at the Council level. Everyone has had a full and fair opportunity other than the legislative history. That is the purpose of this motion. Councilmember Dwyer further commented that the motion to deny the request for reconsideration was made because nothing that was presented at this hearing changed his point of view, and nothing came forward to change his former vote. Councilmember Kasper felt the area of concern is the area of the exemptions without -variances that were either condoned or not condoned by the Council. There are a lot of units which have protruding apertures. The staff had a few examples, but he stated he did not know how far Coun- cil could go with what has gone on in the past, such as staff actions, and so forth. Mr. Snyder informed Council that the acts of the Zoning Administrative Staff in interpreting an ordinance or codes defer to that sort of evidence. The applicant had originally brought forth a number which the staff could address and a number which the staff has not been able to address. If you wanted to reopen it at a date certain, be relevant. Councilmember Kasper felt the problem is that the testimony comes in and is rebutted, but you do not have the time to rebut if these are truly de novo. MOTION CARRIED, with Council President Wilson voting no. Councilmember Palmer asked if it was necessary to amend the proposed Findings of Fact and Conclu- sions to reflect what took place this evening. Mr. Snyder stated the only addition or correction is that tonight's date be added to the list of public hearings at the initial procedural summary. ITEM (A) Councilmember Dwyer asked if it was necessary to do findings on what transpired this evening, or are written findings necessary for denying a motion for reconsideration, or is this at a final stage. Mr. Snyder replied that it can be included, but it would seem that this would be one in a number of steps and could be brought back on August 20th to include discussion on denial of motion or reconsideration of the record. EDMONDS CITY COUNCIL MINUTES Page 7 August 06, 1991 Councilmember Dwyer asked what the Council wished to do since they could vote on approval of ITEM (A) tonight. Councilmember Kasper stated his concerns to be that when they voted last time one vote was the motion to not allow the so-called doghouse aperture on the top of the building and at that time the question was asked does this second vote allow for a variance. Mr. Snyder clarified that the applicant has the right to apply for a variance. If a variance were approved, it would change the standard that the ADB used to review the application. The height limit present in this case was reviewed under a "should", not a "shall" interpretation for screening. A variance and then a reapplication to the ADB would be the way. It would preclude a variance being filed based on your decision. The applicant in effect would have to file two more applications for a variance and then come back, and the ADB would apply a different standard. Councilmember Hertrich" understood that the decision basically was to remove all equipment on the roof. Making that decision a final cap was put on and applicant would not be able to go for a variance. This seems to be different. Mr. Snyder stated that the issue before them is that an application conforms to the Community Development Code. This application has rooftop equipment in excess of 25'. The decision that the Council made is that this does not comply with the code, nor the height limitations, so that it does not comply with the code, as you will see in the Findings of Fact. Mr. Snyder stated that if the applicant were to obtain a variance for the roof mounted equipment, he could come back and reapply. At that point the application would not be in conflict with the Community Development Code, and the code says that roof mounted equipment (and this would be approved roof mounted equipment) "should" not "shall" be screened. It would be in effect a dif- ferent standard of review that would be applied. Your decision contains grounds to deny the application that would not be applicable if the variance were granted. Councilmember Palmer noted that one other remedy to this open to the applicant would be to re- quest to make a change so that the entire roof be a pitched roof. Mr. Snyder felt there were a number of options, including removing the equipment and installing it on the ground. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER JAECH, TO ADOPT A PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Councilmember Hertrich felt to vote now would mean people would not have to come back, A delay would mean that you might have a complete reading of what is being voted on. Mr. Snyder suggested two changes that would address the question: (1) in the initial paragraph to add "August 6, 1991" in line 6, and (2) a minor change in Paragraph 4, Page 2, last sentence the word "was preceding its own request..." should be added. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER PALMER, TO AMEND THE MOTION TO INCLUDE THE ITEMS OF "AUGUST 6, 1991" IN LINE 6, AND ON PARAGRAPH 4, PAGE 2, LAST SENTENCE, THE WORD "WAS" SHOULD BE SUBSTITUTED. MOTION CARRIED, with Council President Wilson voting no. Council President Wilson stated for the record that passage of the motion meant that Council refused to reconsider the issue, refused to accept additional information from Mr. Sanders, and approved modest changes in the Findings of Fact dealing with this issue. Councilmember Kasper said it still leaves the possibility of applying for a variance, and Council President Wilson concurred. Mayor Naughten returned to preside at 8:15. CONTINUED COUNCIL DELIBERATION ON MASTER PLAN FOR PINE RIDGE PARK (FROM HEARING JULY 2) Arvilla Ohlde was present to discuss items arising as the Council had done their walk-through and tour on July 25th. She asked for any other comments and suggestions they might wish to discuss. She presented a drawing for all to see. Councilmember Palmer stated things were laid out 1, 2, 3, 4, but recommended action is not includ- ed. Ms. Ohlde replied that she left the liberty to include those things that she wanted to, and did not preempt them by making the recommendations that she wanted to do. Councilmember Palmer spoke of the wonderful variety of trees to be studied along with this. The switchback trail is better eliminated as Option A under #5. A barrier fence at the south end of EDMONDS CITY COUNCIL MINUTES Page 8 August 06, 1991 the lake should be considered. If there is any way that intrusions into the neighborhood is going to be eliminated it is with a barrier fence. Councilmember Nordquist spoke regarding Item #1, the proposed boardwalk, its size and location. He felt unsure if he was sold on a boardwalk, as it seems it is something that does not belong there. The nature of the site and its originality does not need this added dimension. Council President Wilson concurred, and addressed "Good Hope Pond", which at this point is virtu- ally non-existent. A walkway seems intrusive, and he was concerned and uncomfortable with it. Councilmember Hertrich felt that several other items need to be discussed so that they do not hurriedly jump into it. He illustrated some of his ideas on the drawing provided. COUNCILMEMBER PALMER MOVED, SECONDED BY COUNCILMEMBER NORDQUIST, TO REOPEN THIS MATTER FOR PUBLIC HEARING. MOTION CARRIED. COUNCILMEMBER NORDQUIST MOVED, SECONDED BY COUNCILMEMBER HERTRICH, TO CONSIDER THIS AS A FIRST HEARING, TO GIVE THOSE WHO WERE NOT PRESENT AN OPPORTUNITY TO SPEAK. MOTION CARRIED. Councilmember Hertrich noted that when he took the tour one of the things he was aware of was that some areas of the park had a lot of use, and some had no use. The area of the pond was swamp and was not used. He referred again to the drawing, and mentioned the overlooks which were discussed. He had noticed several campsites and a lot of debris. If there was some sort of small trail lower to those spots with a small outlook on a controlled basis, with a definite trail and definite use area, and then buffered, people would not be sliding off that hillside and deteriorating that side of the park. Councilmember Nordquist requested that Councilmember Hertrich speak to the audience as well. Councilmember Hertrich would like to see some sort of small trail, or some sort of boardwalks to that point, with the trail coming across, rather than the back hill, to the low point. If there is a boardwalk, perhaps it can be a short one, with an overlook. He wished for some ability to enjoy the lake. He specifically pointed out that people would not walk the shoreline, or intrude upon the lake. Ms. Ohlde added that there are undesirable trails going down west to the area, but the east side is where there is the greatest habitat (nesting). These are findings as recommended by the con- sultant. Council President Wilson felt something would have to be done to mitigate easy movement over that trail. Ms. Ohlde mentioned the process is to revegetate, alluding to the vegetation barrier. Mayor Naughten asked for public input. Mr. Barry Birch, 20905 Woodlake Drive, Edmonds, was present. His statements included the fact that the citizens did not receive the reports, and he thought that they should see what the con- sultant has recommended. He came to see how they would vote. Mr. Birch mentioned that in his 13 years in the city he has seen four Parks and Recreation Direc- tors come and go, and he was aware that they did not reside here either. He pointed out that neither do the consultants. He felt that the people who are dealing with these projects do not know how crucial what they are doing is to people who live there all of their lives. He felt strongly this area should be left natural, with no barrier fence. He thought Councilmember Hertrich's ideas to be good, but the fence along Tract 9 is unwanted by the neighbor there. Councilmember Kasper asked Mr. Birch since he represented the residents there, if he thought the boardwalk made it become a private park, and if Mr. Birch felt he would have access to Lot 9, but .that the public should not have it. Mr. Birch replied that he did not think there should be a barrier, and does not think it should be a private park. His home looks down on the pond, and he would not want a fence. He stated it is not the intent to make it a "private park", but to leave it as natural as possible. Everyone knows that parks are hard to control for vandalism. He agreed with viewing areas as being accept- able. Council President Wilson said that the public was causing problems gaining access to the park area. He felt that a mini -boardwalk and viewing stand would attract more public to the street. Mr. Birch stated the access would not be from their street, but a street above. EDMONDS CITY COUNCIL MINUTES Page 9 August 06, 1991 Councilmember Kasper stated the sewer easement is maintained and is open all the time. It is going to stay that way, and it is a walkway. He would like to see it finished. Councilmember Palmer asked Mr. Birch for clarification, as there have been property owners that complained that people were invading their property trying to find access to the park. Mr. Birch felt this could wait until hearing number two, and others can speak on the subject. People do enter the park from Woodlake Drive. Councilmember Palmer stated his concern was about people trampling residents' yards. The public portion of the meeting was closed. Councilmember Jaech wanted copies given to people in the area so that they can give input at a second meeting. She did not feel that discussing this without the public is not good. Councilmember Palmer discussed Item #4, regarding the Department of Natural Resources Agreement for Professional Services, stating everyone wants the park rehabilitated. It was his recommenda- tion that Ms. Ohlde prepare the paperwork for August 20th, and she replied she would have a pack- et ready with a resolution which would be a consent resolution. COUNCILMEMBER PALMER, SECONDED BY COUNCILMEMBER KASPER, MOVED TO DIRECT THE PARKS AND RECREATION MANAGER TO PROCEED WITH THE: APPLICATION FOR THE $5,000 GRANT FROM THE DEPARTMENT OF NATURAL RE- SOURCES. MOTION CARRIED. Councilmember Hertrich requested that Arvilla prepare the possibility of revisions to the plan that they might look at, such as a small intrusion into the lake, weirs, and other information. One possibility is to string off certain areas, thereby eliminating the natural desire to camp there. Council President Wilson stated that something could be worked out for the September 16th meeting. COUNCILMEMBER NORDQUIST, SECONDED BY COUNCILMEMBER PALMER, MOVED TO PUT IT ON THE SEPTEMBER 16, 1991 AGENDA. MOTION CARRIED. HEARING ON APPEAL OF HEARING EXAMINER DECISION REGARDING VARIANCE TO ALLOW STAIRWAYS IN THE EAST AND WEST SETBACKS IN CONJUNCTION WITH CONSTRUCTION OF APARTMENT BUILDING tALREADY C NSTRUCTED AT 411 6TH AVENUE NORTH APPELLANT: FINIS TUPPER/APPLICANT: GEORGE BRADS AW/FILE V-8-91 Jeff Wilson gave the staff report, showing a view foil of the site plan for all to see. Councilmember Hertrich asked what the normal setback for this type of structure is, and Mr. Wil- son replied that it referred to Exhibit 6. In January 1985 this had been granted to this project to reduce the setbacks. When the application was originally submitted, it was 15' down to 10'. Mr. Wilson's understanding was that it just occurred on the 6th Avenue side. Mr. Wilson stated that current requirements call for a minimum of 15' from the street setbacks; side setbacks are 101; and the minimum rear setback is 15'. He explained that if you have two front property lines, both are considered to be sides, so that both 6th Avenue and Sprague would have 15' setbacks, and the alley and remaining property line to the west would have 10' set- backs. This matter concerned only one setback adjustment on 6th Avenue from 15' down to 10'. Mr. Wilson noted that the variance application was to allow a stairwell on the east side to in- trude into the required setback as much as 7'6", and for the two stairwells on the west side to encroach into the setback 3'. The application was necessitated originally by the fact that when they started construction they ran into a high water table. They then had to raise the finished floor elevations, which pushed the rest of the structure up, causing the stairs to increase in height and increase the encroachment. Councilmember Palmer stated he was not sure why this was before the Council if the stairways exceeded the code for height and intrusion into the setback. He questioned why this was not resolved before construction was completed. Mr. Wilson answered that until recently when the project was completed, it was noted that the stairs infringe into the right of way, and the applicant was given the choice to apply for a variance. Councilmember Palmer felt'an inspection should have been made early on, and this could have been resolved before the completion of the project. EDMONDS CITY COUNCIL MINUTES Page 10 August 06, 1991 Mr. Wilson stated that after the staff looked at the variance and the criteria, their recommenda- tion, for the setbacks or the stairs on the east side, was for redesign, in order to reduce the amount of impact to the setback. The Hearing Examiner reviewed the testimony, staff recommenda- tion, and the applicant's testimony, and upheld the original variation application as submitted. Subsequently, there was an appeal filed by Mr. Tupper regarding the decision of the Hearing Exam- iner, and the staff felt there was appropriate grounds for the appeal. The staff recommendation was to uphold the appeal, still allowing for access to the site, but provide minimum variance necessary. Councilmember Dwyer wanted to understand that if the Hearing Examiner's decision were affirmed, how far from the neighbor's property are the stairs, to which Mr. Wilson replied that on 6th Avenue North, since the building is located within 10' of the property, the stairs would be 2-1/2' from the public right of way on 6th Avenue North. On the west property line where there is a 10' setback, since the applicant is requesting a 3' intrusion, the stairs would be located 7' from the western property line. Councilmember Dwyer questioned that if no special requests would be granted, and the Hearing Examiner had not heard the matter, and the plan was coming in today, how far would the stairs have to be from the property line to receive approval from the staff --in other words, a lot with no building on it. Mr. Wilson replied that the way the ordinance is structured, stairs not exceeding 30" in height may intrude 3'4" into the setback area. Councilmember Dwyer wished to know if this is based on some calculation of the rise levels how much difference are we dealing with, and if they were allowed to be no higher than 30" and.3'4" into the setback, how far away from the property lines would that put these stairs. Mr. Wilson replied that the maximum intrusion would be 6'8". Councilmember Kasper stated the permit was issued and he wanted to know about the original draw- ing. Mr. Wilson stated his understanding to be that as far as the site is concerned they are in the same location as shown on the building site plan. The difference is that the finished formal elevation was raised because of the high water table, and the stairwells became much taller. As it was originally designed, it would meet the code. Mr. Wilson explained that building permits were granted in 1989, and the project was finished prior to his employment with the City. He concurred that the high water table was found on the site at the time of construction. Councilmember Hertrich asked Mr. Snyder how long does the City allow for setback adjustments to hold before having to. renew an application, and Mr. Snyder replied there is no time period in- volved. Councilmember Hertrich felt that if everything were normal, the City could be dealing without the setback adjustment and dealing with not 4', but 9'. The actual end of the stairs would be a total of 9' without the setback adjustment. Mr. Wilson clarified that the building would be 15' back. It allows steps to encroach no more that 1/3 of the required setback. A normal --setback of 15' they could encroach then up to 5'. Councilmember Palmer noted that on Page 2 of the Hearing Examiner's decision, Item #5, that "un- covered steps can project into required setback not more than 1/3 of the required setback or 4', which ever is less". Mr. .Wilson responded .that on the west property line they would be able to encroach approximately •3-1/3' (1/3 of the 10' setback), 7-2/3' from the property line to the stairs. The Hearing Examin- er allows for the 3' intrusion. The public hearing portion of the meeting was opened. Mr. George Bradshaw, 911 Carey Road, Edmonds, the applicant, was present to state he built the building with his two sons, and the water table was 10" higher than they wanted. The stairs are 40" instead of 30", otherwise there is no problem. The Engineering Department insisted on the driveway coming in from the street and exiting from the alley. The driveway is at a maximum slope that the city allows. He explained they would go ahead and landscape to soften it, and there are three sets of stairs, with the center stair having a nice arch. This works well for those who move in and out, but he stated he is willing to do anything to make the thing legal. His point was that it is a unified design with the stairs, arch and sign. He stated he has had many compliments on how beautiful the building is and he is proud of it. EDMONDS CITY COUNCIL MINUTES Page 11 August 06, 1991 Councilmember Kasper asked when it was redesigned if they did not take the stairs into considera- tion, to which Mr. Bradshaw answered that the question did not arise until the stairs were actual- ly there. Mr. Bradshaw said he felt he was squeezed in between the different rules. Councilmember Palmer questioned if the run and rise that was used had been redesigned, could it have brought them closer, and Mr. Bradshaw explained that this was the steepest he can use legal- ly. Mr. Finis Tupper, 711 Daley Street, Edmonds, the appellant, was present and stated he would focus on Section 20.85, which addresses two issues. One is special circumstances and zoning ordinanc- es. Special circumstances, size and shape of the lot, topography, etc. Regarding ground water as defined by the Hearing Examiner, he did not feel this was a special circumstance. He cited that various buildings have been built who found similar circumstances and the ground water trou- ble has been overcome. Mr. Tupper stated that in this situation the applicant was entitled to hook up to the city's storm sewer system and drain that lot, so the ground water is not a special circumstance. The Hearing Examiner did not look at the applicant's declarations in his application for the vari- ance. The present slope of both driveways is 14% grade, and if the design had been lowered 6', the grade would have been 23%, and you cannot get a variance for that. The reason for the vari- ance is that he received a streetfront setback adjustment and it is a self-created hardship. Mr. Tupper further stated that the Hearing Examiner did not note whether it is in compliance with the zoning ordinance. This was developed as a complete rectangle. There are no divots in that building. The building is 76' long and 40' wide, and you add stairs into lot coverage. The lot size is 6,600 square feet, and you are entitled to lot coverage of 45%, so he exceeds that by approximately 10%. For that reason he requested that his appeal be upheld. Mr. Tupper requested that the staff recommendation to modify the stairs be followed on the west side. Councilmember Dwyer asked for clarification if the Council disagreed with the position that ground water did not constitute a special circumstance, and what design features or design could have made encroachment unnecessary. Mr. Tupper replied that many buildings have been built, and this property could have done it only on one side. The applicant: would have needed a longer ramp in order to get down as long as he wanted. E Councilmember Dwyer inquired how much would reducing the grade reduce the necessity for encroach- ment, and Mr. Tupper replied they would have lowered the rise, so there would be no necessity for extra steps. Councilmember Palmer asked Mr. Bradshaw if the stairs on the east side of the property is strict- ly porch, and the answer was yes. Councilmember Palmer asked if the porch side was reduced and the stairs brought further to the left, would this have eliminated encroachment, and Mr. Bradshaw replied that the porch is 3' wide for the landing in order to be legal. The City never told him that he could go 20%, since that would have dropped it by 10". Mr. Bradshaw stated the stairs in front are 40" high, and that; if they had been 30" high, they would be legal. Councilmember Dwyer asked Mr. Bradshaw what problem, if any, is. there in complying with the staff position, and Mr. Bradshaw answered that they would end up with four sidewalks coming out to the sidewalk instead of three. Mr. Bradshaw reiterated that the only other objections are for people who are moving in or out. It is a do -able change, but the only other problem, beside too many sidewalks, is that with the asign the the way the sidewalks are now, it is a unified design. Architecturally it works very nicely and is pleasing at present. He felt that people are trying to build good looking build- ings in Edmonds. Councilmember Hertrich asked if this question was taken to the Architectural Design Board, and Mr. Bradshaw replied no, but would assume if it needs to be changed, it will have to go through the ADB. Mr. Bradshaw stated he was at the ADB meeting originally, and no one else came to the meeting. He felt that the Hearing Examiner was there to make decisions and to think things through. He said he waited the 14 days to see if it had been appealed, checked on the 14th day and no one had appealed, but was contacted later and told that there had been an appeal. Councilmember Palmer asked what the estimated cost of the change to the stairs configuration, and Mr. Bradshaw replied that it would be approximately $5,000. EDMONDS CITY COUNCIL MINUTES Page 12 August 06, 1991 Mayor Naughten closed the public portion of the meeting. Council President Wilson observed that apparently the original plans were presented, but it was obvious that the grade into the property was too steep. Jeff Wilson replied that the grades still meet the code, but they ran into ground water. The on-the-job change was not carefully scrutinized. Council President Wilson questioned the 23% grade, and Mr. Wilson replied that regarding the same driveway or garage footprint, all the parameters stayed the same, setbacks of the structure, but for the driveway to go from Sprague Street down into the garage would have had a 23% grade. If 14% as required by the Engineering Department, underground parking area would have been required to shrink somewhat. Council President Wilson noted that it appears that the plans were approved, and Mr. Wilson stat- ed he had to make an assumption that the building site plan came in during the permit process. Mr. Wilson stated that as part of the comments required by the Engineering Department would be to state that no more than 14% grade allowed for that driveway, and when staff reviewed, that those standards must be met. When the permit was issued, the understanding was that everything would be appropriate, and then something transpired when the water table was found to be much higher. Council President Wilson questioned Mr. Tupper's statement about the footprint on the lot being the legal square footage. Mr. Wilson explained that Mr. Tupper and the Planning Department have had some conversations, dialogue and correspondence regarding that issue, and the methods used to calculate. They found that none of this is in the record because it was not a part of the vari- ance application since it was not germane to that issue. The record and calculations based on how things have been done historically (there is a letter from Mr. Somers to Mr. Tupper), porches and stairways are not considered to be part of lot coverage. Even given that set of circumstanc- es it was found that the site plan still was 6' over what the allowable lot coverage requirements are for that area. Mr. Snyder interjected that if you compare areas with front elevations, historically decks were not included as part of lot coverage. It is somewhat apparent that Lee Francis, of the staff, made a decision at that time for approving those as decks and then had to stick by it. Mr. Snyder informed the Council that it is not the City's job to redesign a building. If we know about something, then we are liable. Whether or not it is a variance, everything else did comply with the plan. Council President Wilson asked what the staff's opinion of what this building will look like if the stairs are changed, and Mr. Wilson replied that the proposal is one that Mr. Somers has shown. In looking at this alternative as being a practical alternative, Mr. Somers did take into consideration what the ADB may have to say about this issue, as he works closely with them. Council President Wilson felt that if this was changed and it was not aesthetically pleasing that that would not be too smart. Mr. Snyder stated that the applicant may make changes in his plans as long as they are not signif- icant. Your variance may comply with the code, but would still have to go through ADB amendment. Councilmember Kasper felt that the staff had approved the design and had told Mr. Bradshaw what had to be done and he did it. Councilmember Dwyer stated it seemed because of ground water that the minimum encroachment neces- sary if the building were designed with the 20% grade driveway, is that the building does not have to be as high, and with the stairs oriented as the staff has them designed, he did not know if that had been done whether there would have been a necessity for a variance request. His conclusion was that it would be a lesser request, and asked if there was any idea how much less the request would be now. Bob Alberts spoke regarding the 20%, stating that figure is not correct. The City considers this a parking lot, and that is where the 14% came from. Council President.Wilson asked if this was changed, and Mr. Alberts replied the parking stall itself is 6%, and under certain circumstances can go up to 14%. Councilmember Dwyer asked if anything is 20%, and Mr. Alberts replied that yes, single family driveways are. Councilmember Hertrich warited to know which procedure would be first if the ADB would have been involved, and Mr. Wilson replied that in talking with department heads, something occurred prior to review with some of the actual discrepancies in permits that occur. EDMONDS CITY COUNCIL MINUTES Page 13 August 06, 1991 Councilmember Hertrich asked further if the ADB denied this on the basis of design and suggested they follow a plan similar, if they could then go to a Hearing Examiner for a variance. Mr. Wilson stated that the staff does not have a unilateral authority to deny someone to apply for a permit. The applicant always has the ability to submit a plan, and the staff makes a recommenda- tion. Councilmember Hertrich wanted to note that considering the possibility that they (ADB) had denied that design as built and come to some conclusion similar to the staff and then approved it, the request for the variance would be considerably less on the plan. At that point the projection into the setback area would be considerably less. Mr. Wilson stated that a variance is usually related to a hardship, not design. Mayor Naughten reminded everyone that this had exceeded the allotted time, and asked them to focus on the decision. Mr. Snyder spoke regarding ADB findings, stating they must find that an application is in compli- ance with the city code. The variance request should come first. People can process simultane- ously, and we approve it if a variance is granted. The staff can also find that a change is not significant and do not have to refer back to the ADB. Mr. Wilson stated they had not reached a position to send it back to the ADB, since right now the stairway configuration complies with the original design approved by the ADB, except that it is higher. Councilmember Hertrich referred to Page 2 of 2 where the staff indicated the maximum variance by the Hearing Examiner, the code suggests we can have a minimum variance in accordance with the staff recommendation. COUNCILMEMBER KASPER MOVED TO CONTINUE THE MATTER SO COUNCIL PRESIDENT WILSON COULD HEAR THIS AND HE COULD LISTEN TO THE TAPES; THE STAFF CAN COME BACK WITH THE FACTS OF WHAT HAPPENED IN BETWEEN; IF IT WAS REVIEWED AND ANYTHING ISSUED. MOTION FAILED FOR LACK OF SECOND. Council President Wilson had been absent for a few minutes and apologized for this. Councilmember Palmer stated that while the applicant is ultimately responsible for the quality of submittals, when the ground water was found the public and the applicant relied upon the staff's review to know any inconsistencies with the code. Were submittals and review up to snuff this would not have to be discussed today. His recommendation was that the appeal be upheld and that the stairs be reconfigured to the recommendation of the staff, with any minor change t6 have ADB review, and the applicant submit 50% of the cost of the repair of the steps to the City for con- sideration. Councilmember Kasper felt this would be corrected to where the public will have a hard time using it. You cannot load furniture, and you are handicapping the future use of the building over a faux pas, and well enough should be left alone. COUNCILMEMBER KASPER MOVED TO ALLOW THE HEARING EXAMINER TO STAND AND BE UPHELD. MOTION FAILED FOR LACK OF SECOND. Councilmember Dwyer stated that a common element is natural conditions. He felt this was a spe- cial circumstance; however, what is frustrating is there are no answers to these questions. When the ground water was discovered, the applicant's duty was to address the problem within the code. These stairs on that lot do not qualify for a variance since this is dictated by a human choice. His opinion was that the Hearing Examiner did not meet the needs, and while it is harsh to deny the request, the evidence is not strong enough to sustain it since the applicant has not shown this necessity. Councilmember Hertrich agreed with Councilmember Dwyer's assessment, but agreed also with Council - member Palmer, with the exception of the part about the City paying 50%. He further stated he had driven by the facility since the stairs went in and has felt it was odd looking in this city, and it looks like you could trip on them if walking on the sidewalk. COUNCILMEMBER HERTRICH MOVED TO UPHOLD THE APPEAL BY DENYING THE HEARING EXAMINER'S DECISION. MOTION FAILED FOR LACK OF A SECOND. Councilmember Dwyer felt that this should be remanded to the Hearing Examiner with the concerns. The Hearing Examiner's decision did not constitute the minimum necessary. He further asked that the staff take a position as to whether or not a building could have been designed not making this variance request necessary at the time the ground water was discovered. EDMONDS CITY COUNCIL MINUTES Page 14 August 06, 1991 Mr. Snyder suggested to Mr. Dwyer that the applicant (appellant) has to have the burden of proof in a matter such as this. Councilmember Jaech asked that because the building is so visible why was the staff not aware of what was going on, and it seems it was condoned. Mr. Snyder felt that because of a lack of staff this could have been overlooked and perhaps would not be caught until an applicant requested final inspection. Mr. Peter Hahn was presented, and disputed the facts of the case as presented, saying that the degree of harm and violation was not known until the pouring of the stairs. Mr. Bradshaw was told that it was at his risk, and that he would have to come in to get his variance, so there was never any approval of any type. Councilmember Palmer asked if he was told to proceed at his own risk after the stairs were poured, as the staff has not been able to put into the record if the applicant had or had not been given approval. Mr. Hahn responded no, and that when it finally'came time to deal with the stairs after the existing stairs were poured, that this was our preferred solution to fixing a problem of pouring the stairs. Councilmember Palmer asked Mr. Hahn if the plans were given to the staff for review, and Mr. Hahn replied no, that the plans that were submitted conformed to all regulations, and only became a problem when he did not conform to the plans where the stairs were concerned. There were no revised plans which came in. Mr. Snyder stated it might be helpful to have a plan check presentation so that the Council would be informed as to how the process works. He explained that the Building Inspectors are checking on many things at a time. Mr. Hahn stated there was never a set of plans submitted showing a raised building, raised stairs, etc. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER JAECH, TO EXTEND THE MEETING PAST 10:00 P.M. MOTION CARRIED. Mr. Snyder noted that the building code is quite specific in relieving the building code and the City'•of obligations or liability for deviations from plans that are submitted. It is the obliga- tion of the applicant to keep those plans coming in when there are changes. COUNCILMEMBER DWYER MOVED TO REMAND THIS TO THE HEARING EXAMINER FOR A DETERMINATION AS TO WHETH- ER AT THE .TIME THAT THESE SPECIAL CIRCUMSTANCES OF GROUND WATER BEING DISCOVERED, A BUILDING COULD HAVE BEEN DESIGNED ON THIS LOT WHICH WOULD NOT HAVE REQUIRED THIS VARIANCE REQUEST, AND EVEN WHAT THE MINIMUM AMOUNT VARIANCE WOULD HAVE BEEN AT THAT TIME THERE WAS AN UNFORESEEN SPE- CIAL CIRCUMSTANCE. MOTION DIED FOR LACK OF SECOND. Councilmember Palmer felt this narrowed the Hearing Examiner's review, as there is always a de- sign that could fit into a building envelope. The Council is just rethinking about the past. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCILMEMBER HERTRICH, TO REMAND THIS TO THE HEARING EXAMINER FOR A DETERMINATION ON WHETHER AT THE TIME THESE SPECIAL CIRCUMSTANCES OF GROUND WATER WERE DISCOVERED, A BUILDING COULD HAVE BEEN DESIGNED ON THIS PARCEL WHICH WOULD NOT HAVE REQUIRED THIS VARIANCE REQUEST, AND WHAT THE MINIMUM AMOUNT VARIANCE WOULD HAVE BEEN AT THAT TIME THERE WAS AN UNFORESEEN CIRCUMSTANCE. Councilmember Kasper asked what happens when they come back with the new design, and Councilmem- ber Hertrich replied that a better record is what Councilmember Dwyer was attempting to establish. MOTION FAILED. Mr. Snyder reiterated that the variance applicant has the burden of proof. If they have estab- lished to the Council satisfaction the proposition that Mr. Dwyer put forward, you should deny their application. COUNCILMEMBER PALMER MOVED, SECONDED BY COUNCILMEMBER JAECH, TO UPHOLD THE APPEAL AND REQUIRE THE STAIRS TO BE RECONFIGURED TO THE STAFF RECOMMENDATION, AND THAT THIS BE CONSIDERED A MINOR CHANGE NOT REQUIRING ADB REVIEW. MOTION CARRIED. Councilmembers Kasper and Dwyer voted no. EDMONDS CITY COUNCIL MINUTES Page 15 August 06, 1991 CONSIDERATION OF AMENDED CONTRACT WITH PATHWAYS FOR WOMEN Councilmember Nordquist stated that he attended a seminar recently which pointed out that this could be a potential problem, with the public funds being given. He cautioned that they should be very careful, as a like request could be made on demand by the opposite sex. Mr. Snyder interjected that this is the only application before the Council, and that is why a letter of clarification from the applicant was requested. Councilmember Nordquist reminded them that the application was not for construction, but for direct usage of the homeless. Councilmember Hertrich asked if the Council agrees with all the expenditure for the $15,000. COUNCILMEMBER HERTRICH MOVED, SECONDED BY COUNCILMEMBER PALMER, FOR APPROVAL OF THE CONTRACT FOR PATHWAYS FOR WOMEN. Councilmember Nordquist expressed his reluctance in voting for it, and would hope that the funds will be distributed elsewhere, and not in landscaping or something of that nature. Councilmember Kasper spoke about the $45,800, stating it could be deep water. MOTION CARRIED. REVIEW AND APPROVAL OF DEPUTY CITY CLERK JOB DESCRIPTION Brent Hunter prefaced this by stating that Mr. Housler wanted to have the opportunity for the new City Clerk to have input. Councilmember Nordquist noted that a new line had been inserted in the paragraph stating "it is the Administrative Services Director's recommendation to allow the new City Clerk the opportunity to evaluate the impact of the Planning/ADB minutes before fully assuming those responsibilities in the future". Who will take those minutes if the new City Clerk says the Deputy City Clerk is not supposed to do it? The Reply from Mr. Hunter was that we will have those under contract as we currently do. He believed that Mr. Housler desired to have the new City Clerk participate in an evaluation as we phase into the Planning and ADB minutes. Council President Wilson stated that that is exactly what the Council said not to do, and here we are, and there goes the budget. Mr. Housler informed them that when Jackie Parrett did this it was a full time job to take the minutes. Prior to 1984 when Ms. Parrett was Deputy City Clerk, it was a full time job. Consider- ing also that the Council minutes themselves take 36% of the job, leaving 64% to assist the City Clerk and relieve on various positions in the Clerk's office. Given what Ms. Parrett has stated, it leaves no time for relief in the City Clerk's office for vacations or anything else. He felt strongly this should be readdressed because there is some perception by the Council that is inac- ,. curate, and this should be reviewed fully. Councilmember Kasper mentioned this would be a savings of $10,000. Mr. Hunter stated this is based on the salary differences and the contracts. Council President Wilson stated that basically it is to continue a system which we have presently. Mr. Housler felt they should leave this open until the new City Clerk gets going. Setting this in concrete at this time would be a mistake, and he would like to leave the decision open, since it restricts creative reorganization. Councilmember Palmer addressed the cost savings on the last page would then be reduced from $10,880, pull out $5,484 of the Planning and ADB minute taker, and reduce the savings to $5,396. He did not feel comfortable with a job description that was not firm. Mr. Housler did not want them to include this at this time. You will end up with strictly a minute taker or recorder, because she will have no time for any thing else for the City Clerk's office. Councilmember Nordquist stated this was disappointing, and the Council is on record that this be clarified about a year ago. Several things were discussed at the retreat, such as getting a City Clerk from outside City Hall. Also mention of the City Clerk having some interesting assign- ments, and the Deputy City Clerk to help the City Clerk in some of those projects. He felt that EDMONDS CITY COUNCIL MINUTES Page 16 August 06, 1991 somewhere in between, that Mr. Hunter should have gotten to the Council and told them "This isn't going to work". Mr. Housler felt that the Council was unaware of what goes on on a day-to-day basis to manage that area. He urged that the manager should be allowed to do a job for the City. This division should not be under such constant scrutiny, and the manager should be given an opportunity to do a good job. Councilmember Nordquist felt that change is good, and people in private industry can come along, and the Council as well, can make some observations. Mr. Housler was of the opinion that some of the observations made are incorrect, and that the Clerk's Office is required on a moment's notice to perform duties, and that these are not infre- quent occurrences. A public entity cannot be run like private industry. Councilmember Jaech did not agree with Mr. Housler in this regard, and stated she felt like all the cards are being thrown up in the air and this was discussed at retreat as to the restructur- ing of the Clerks job itself. Then the new position of Deputy City Clerk was created to do the minute taking. If the staff does not want that, then eliminate the position of Deputy City Clerk, and we will hire it professionally done by an outside minute taker with the recorder, and continue on that level. What the Council was trying to do was to consolidate and streamline it by actually having that person on the staff. Now this seems to be out the window. Mr. Housler reiterated his comment about not having this in concrete, and that that was his under- standing and he believed it is in the retreat minutes that way --that is, that the ADB, Planning Board, and others, were not set in concrete. Councilmember Dwyer felt this should be put aside, and to ask that Barb Mehlert get out the tapes of the minutes from the retreat to flesh out what was said. He would like to have this in two weeks' time. Mr. Housler would like to have the Council decide at this time whether they want this person to take all three minutes. Councilmember Kasper stated there are also Disability Board and Civil Service Commission minutes which takes the City Clerk's time. Councilmember Dwyer felt that they needed to go back and see where they have agreement in the retreat minutes, and then we can deal with Mr. Housler's concerns. Councilmember Hertrich voiced his approval of a comment made by Mr. Housler whereby his ideas with regard to the position and the Council's ideas seemed to contrast. If Mr. Housler is respon- sible for this position, he felt he would like to hear what his plan is and if there could be a compromise. MAYOR JOINT MEETING BETWEEN PLANNING BOARD AND CITY COUNCIL RE THE ADULT ENTERTAINMENT ORDINANCE MEETING DATE 8/13/91 Mayor Naughten brought forth the proposed August 13th meeting regarding the Adult Entertainment Ordinance, asking the Council how they wanted to handle the time people would be allotted. Councilmember Dwyer stated he did not have a problem with 1, 3, and 4, and felt nothing but resis- tance would be felt if people are limited to three minutes. This night has been set aside, and given its own night. Any goodwill will be subverted. Councilmember Dwyer felt the order for their appearance to speak should be (1) Edmonds residents and (2) persons who work here. There will be people who want to talk for 10 minutes. There should be several different sign up sheets to denote "Edmonds Resident", etc. Councilmember Palmer felt if the public was adequately notified of their time they would comply. Council President Wilson remarked that he wished a copy of the ordinance to be on the back of the agenda, and it was determined that since it was several pages, that the staff should make copies for distribution. Mr. Snyder offered to summarize the ordinance, but the consensus was that the public should receive an entire copy. Councilmember Palmer wished to have it made very clear that there is no proposal before the Coun- cil. EDMONDS CITY COUNCIL MINUTES Page 17 August 06, 1991 Mayor Naughten stated the purpose of the hearing is to review the Edmonds city ordinance regard- ing adult entertainment, and any suggestions they have to change it, and to establish the Edmonds standard. He announced that Mr. Snyder will review the ordinance for the audience and will be prepared for separate handouts. COUNCILMAN PALMER, SECONDED BY COUNCILMAN DWYER, MOVED TO ALLOW PEOPLE WHO SPEAK A TOTAL OF THREE MINUTES. MOTION FAILED, WITH DWYER AND PALMER VOTING YES; HERTRICH, JAECH, NOROQUIST, WILSON AND KASPER VOTING NO. * It was the consensus that there would be no limit on time. It was further the consensus that the meeting can be extended for 15 minute periods of time, and the meeting is presently listed as being from 7:00 p.m. - 10:00 p.m. rnnNCTI Council President Wilson spoke regarding the Paramatrix offer (growth management), asking for any comments. None were forthcoming. Council President Wilson wished to have the "Adopt a Highway" put on the agenda for the near future. Council President Wilson stated that the Mayor had gotten a communique asking that a model resolu- tion for a statement referendum for enhanced 911 emergency communications services. Councilmem- ber Dwyer felt they need not take a position. It is designed for rural communities, having to do with phone calls and the aid cars. Mr. Snyder reported that this came from Don Davidson, Mayor Pro Tem, of the City of Belleuve. Councilmember Palmer stated that Mr. Snyder sent a memo regarding bench warrants, because of the new court rule. The problem is with the issuance of bench warrants on a number of decriminalized offenses. This matter needs to be taken up by public safety. Mr. Snyder stated the rule goes into effect September 1, and if the Council can put it on the agenda for,the August 27th meeting, he can do an emergency ordinance. Councilmember Dwyer felt Judge Conroy should be contacted regarding his position on it. We did well in the legislature in staving off this bill to preempt us on sentencing, and we got poli- ticked in the court, and they have done by court rule what we staved off in the legislature. Mr. Snyder stated he also got a memo from Dave Steiner, and wrote to the judge at the same time and asked for his suggestions such as if a two-step bench warrant process would be practical. Councilmember Palmer asked that Mr. Snyder get with the judge and have a recommendation at the August 27th meeting. Mr. Snyder stated if the judge's recommendation is a failure to appear or a two-step process that would be very quick and simple to do. A longer decriminilization process, he suggested that they take time to do that. Councilmember Palmer spoke regarding municipal space needs study, informing that they interviewed five firms last week. Councilmember Dwyer would like not to discontinue the 5th Tuesday meetings; however, he will defer to the wishes of the majority. Councilmember Kasper mentioned that the ordinance says "regular meetings are on Tuesday". Those meetings have been extracurricular. The 5th meeting will just be a surplus meeting. He felt the word "regular" was a misnomer. Councilmember Dwyer would like to receive a copy of the reply sent to Mrs. Clark regarding the 3rd & Main intersection. Councilmember Kasper asked what the status of the Fire Chief and Mr. Dolan was. Councilmember Jaech found tonight's hearing revealing as to what we have not done on inspec- tions. Her concerns are that buildings are not complying, and she has had several questions asked, particularly about the 6th & Walnut area. She would like to have the Planning staff look into and check on the two buildings and report back. Council President Wilson commented that the situation was the same and 2nd & Bell, and we need to find a way to stop some of this early on. He felt they had to stop it. EDMONDS CITY COUNCIL MINUTES Page 18 August 06, 1991 *See 8-10-91, p,l Mr. Snyder reiterated that the familiarizing with the building process, as with a flow chart perhaps would clarify for them the process of inspections. Councilmember Palmer stated that if the departments do not have the tools to do their jobs, the Council should know about it. Councilmember Jaech said there is a concept as to what the inspectors are doing and what they are really doing. Councilmember Hertrich stated he and Councilmember Kasper are on the Community Services Commit- tee, and the Public Works building will be designed in the near future. There are last ditch communications with the Olympic Water District. It would be more practical to build one build- ing, and it sounds as though they may be receptive. He would appreciate Council's input, and invited them to join in the process. Councilmember Dwyer felt that people in Lynnwood and Mountlake Terrace ought to be talked to to see how a joint facility would work. There are differences of opinion from both sides. Councilmember Hertrich spoke regarding UNOCAL, stating they need to have a decision as to what the next move will be. August 7, 1991 is the Reid -Middleton Technical Policy Meeting date. They are in the middle of a study, and how do we handle this issue now. Council President Wilson stated this would be in Executive Session for August 20, 1991. Mr. Snyder spoke about the point that Ms. Shippen had raised, and apologized if the minutes do not reflect the approval of the Sale Agreement. This should be in the minutes, and he asked that they reconfirm the action, since it needs to appear in the minutes. The best time to do this is now, as opposed to doing it on August 20th, if in fact it does not appear. He was referring to the offer of 2.9 million dollars which the Council approved. COUNCILMEMBER DWYER MOVED, SECONDED BY COUNCIL PRESIDENT WILSON, TO REAFFIRM THAT THE EDMONDS COUNCIL DID AUTHORIZE THE MAYOR TO EXTEND AN OFFER ON THE SAFEWAY PROPERTY, AND THE OFFER WAS MADE WITH SPECIAL CIRCUMSTANCES ATTACHED. MOTION CARRIED. Councilmember Jaech reiterated that a number of circumstances had to be met, and this should be clarified. The meeting adjourned at 11:00 p.m. THESE MINUTES ARE SUBJECT TO August 13, 1991 APPROVAL. THE OFFICIAL SIGNED COPY OF THESE MINUTES IS ON FILE IN THE CITY CLERK'S OFFICE. - JACQ LINE G. PARRETT, CITY CLERK Lr/ , EN, A R EDMONDS CITY COUNCIL MINUTES Page 19 August 06, 1991 AGENDA EDMONOS CITY COUNCIL PLAZA MEETING ROOM -LIBRARY BUILDING 7:00 - 10:00 P.M. AUGUST 6, 1991 SPECIAL MEETING 6:30 P.M. - EXECUTIVE SESSION - LEGAL MATTER CALL TO ORDER FLAG SALUTE 1. CONSENT AGENDA (A) ROLL CALL (B) APPROVAL OF MINUTES OF JULY 2, 1991 AND JULY 23, 1991 (C) CANCELLATION OF MUNICIPAL WARRANTS (D) AUTHORIZATION TO REPLACE SEWER TV CAMERA ($8,656 INCLUDING SALES TAX) (E) REPORT ON BIDS OPENED JULY 24, 1991 ON HO-PAC VIBRATOR COMPACTOR/ DRIVER FOR WATER/SEWER SECTION, AND AWARD OF CONTRACT TO FRAY EQUIPMENT COMPANY, INC. ($5,491.15, INCLUDING SALES TAX) (F) AUTHORIZATION TO APPLY FOR DNR URBAN FORESTRY STUDY FOR YOST PARK ($2,500) 2. AUDIENCE 3. (A) CONSIDERATION OF FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING (20 MINUTES) APPEALS OF ARCHITECTURAL DESIGN BOARD DECISIONS REGARDING ROOFTOP EQUIPMENT ON APARTMENT BUILDING AT 207 SECOND AVE. N. (APPELLANTS: RESIDENTS OF HARBORMASTER CONDOMINIUM/FILE AP-3-91; AND RICHARD SANDERS FOR DEL LOWELL AND DOUGLAS HERMAN/FILE AP-7-91); AND (B) REOPENING OF HEARING TO ENTER INTO THE RECORD ANY MINUTES, STAFF REPORTS, OR OTHER INFORMATION CONSIDERED DURING THE PROCESS OF REVISING THE COMMUNITY DEVELOPMENT CODE WHICH MAY PROVIDE INSIGHT REGARDING THE CITY COUNCIL'S INTENT IN ENACTING HEIGHT LIMITS; AND (C) CONSIDERATION OF REQUEST FOR RECONSIDERATION RECEIVED FROM RICHARD SANDERS 4. CONTINUED COUNCIL DELIBERATION ON MASTER PLAN FOR PINE RIDGE PARK (15 MINUTES) (FROM HEARING JULY 2) 5. HEARING ON APPEAL OF HEARING EXAMINER DECISION REGARDING VARIANCE (25 MINUTES) TO ALLOW STAIRWAYS I:N THE EAST AND WEST SETBACKS IN CONJUNCTION WITH CONSTRUCTION OF APARTMENT BUILDING (ALREADY CONSTRUCTED) AT 411 6TH AVE. N. (APPELLANT: FINIS TUPPER/APPLICANT: GEORGE BRADSHAW/ FILE V-8-91) 6. CONSIDERATION OF AMENDED CONTRACT WITH PATHWAYS FOR WOMEN (10 MINUTES) 7. REVIEW AND APPROVAL OF DEPUTY CITY CLERK JOB DESCRIPTION (10 MINUTES) 8. MAYOR 9. COUNCIL THE PUBLIC IS INVITED TO ATTEND PARKING AND MEETING ROOMS ARE HANDICAPPED ACCESSIBLE